CARLOS CRUZ v. MICROS RETAIL SYSTEMS

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4711-06T24711-06T2

CARLOS CRUZ,

Petitioner-Respondent,

and

FIRST TRENTON INDEMNITY

a/s/o CARLOS CRUS,

Petitioner-Respondent,

v.

MICROS RETAIL SYSTEMS, INC.,

Respondent-Appellant.

______________________________

 

Argued February 11, 2008 - Decided

Before Judges Collester and C.S. Fisher.

On appeal from the New Jersey Department of

Labor, Division of Workers' Compensation.

Michael J. Marone argued the cause for

appellant (McElroy, Deutsch, Mulvaney &

Carpenter, attorneys; Mr. Marone and Richard

J. Williams, Jr., on the brief).

Luis A. Martinez argued the cause for

respondent Cruz (LaBarbiera & Martinez,

attorneys; Mr. Martinez and Lonnie J. Griffin,

on the brief).

Dwight J. Michaelson argued the cause for

respondent First Trenton Indemnity (Methfessel

& Werbel, attorneys; Mr. Michaelson, on the

brief).

PER CURIAM

In this workers' compensation case respondent Micros Retail Systems (Micros) appeals from an order of the Division of Workers' Compensation awarding petitioner, Carlos Cruz, medical and temporary disability benefits following the determination by the judge of compensation concluding that Cruz's October 9, 2003, auto accident was a compensable, work-related accident under the New Jersey Workers' Compensation Act. This determination was made following a motion for medical treatment and temporary disability benefits filed by petitioner, in which he asserted that he had received extensive medical treatment for his compensable injuries, which was paid by Personal Injury Protection (PIP) through First Trenton Indemnity (FTI). Petitioner states further treatment is necessary and claims Micros is responsible for its cost. FTI has filed a petition for reimbursement of the payments made pursuant to PIP. Micros admitted that Cruz was in its employ on the date he suffered injuries but denied that the injuries arose out of and in the course of employment.

The judge of compensation, Judge Kovalcik, heard testimony on the issue of compensability for the October 9, 2003 accident. There was considerable agreement on the facts. Cruz worked for Micros as a computer technician installing and repairing computer equipment at work sites away from Micros' home office in Weehawken. On October 9, 2003, he arrived at the Weehawken office at about 8:30 a.m. and was told shortly thereafter that he was to go to the United States Tennis Association at Forest Hills, Queens, New York, a location where Cruz had previously performed work on several occasions. He loaded a company van with equipment and together with a co-worker, Hector Moquette, set off for Queens. His route of travel from Weehawken was through the nearby Lincoln Tunnel to Manhattan and across 34th Street and the Midtown Tunnel to Queens.

Cruz testified that before entering the Lincoln Tunnel he went for his "usual morning break" at a delicatessen on 23rd Street and Kennedy Boulevard in Union City, which was about four or five blocks off his direct route to get a cigarette and some snacks that he and Moquette planned to eat on the way to the work site. He said that before he stopped, he called the company dispatcher to let the company know he was getting snacks. He parked on Kennedy Boulevard and started walking across the street to the deli when he was struck by a car. He suffered severe injuries as a result.

David Kaneshige, Micros' Customer Sales Manager, testified that on October 9, 2003, he was working as a dispatcher. He said he did not receive any call from Cruz before the accident, although he admitted that it may have been received by another dispatcher. Kaneshige testified that in-house workers were permitted two fifteen minute breaks during the day and were permitted to cross the street to buy snacks or cigarettes. He also said that to go from Micros' main office to the 23rd Street deli required Cruz to detour a number of blocks off the route to the Lincoln Tunnel.

Luis Oliveira testified he was a Service Manager on October 9, 2003 and at present was the Director of Service for respondent. He testified that the policy set forth in the company manual required an employee dispatched out of the office to go directly to the site unless permission to deviate was given by a company manager. He said that while field employees were entitled to a break, they could not take it while en route to a work site.

Judge Kovalcik found that petitioner was "credible, internally consistent and eminently believable" and the "most credible of the witnesses." He found the employer's witnesses were not credible at times. He noted that Kaneshige and Oliveira disagreed as to whether workers in the field were required to call and report they were taking their breaks. He found Oliveira's testimony to lack credibility in the distinction he made between the liberal break policy for in-house workers and the strict policy for field workers. As a result the judge concluded that Micros' policy of breaks for personnel in the field "was as loosely defined as their policy for 'in-house' breaks and more consistent with Petitioner's understanding than the clearly 'hindsight' version presented by Kaneshige and Oliveira, who were simply not credible in that regard." Furthermore, the judge found petitioner's understanding of the policy on breaks to be consistent with the language of the policy manual. The court concluded:

The relevant facts are that the Petitioner was on a special mission for the employer driving an employer owned and provided vehicle and that were he working on premises rather than in the field he would have been permitted a coffee break. Once those facts are established no further inquiry is needed. The claim of the Respondent's witnesses that special rules applied to field employees to prohibit a stop for coffee were not credible and merit no further consideration. The "loose" nature of "breaks" onpremises is of no relevance, except to the extent it made the alleged restrictive rules for field personnel less credible. The conversations Petitioner may or may not have had with dispatchers or call centers are of no relevance. A direct comparison of the Petitioner's "coffee break" with that of an onpremises employee's "coffee break" is a meaningless exercise, since there can be no comparison of a coffee break within a building facility and one taken "on the road." It is sufficient to note that an onpremises employee injured in the course of his coffee break would be deemed to be in the course of his employment and his injury compensable. The Court in [Jumpp v. City of Ventnor, 177 N.J. 470 (2003)] clearly indicates that "Off-premises employees enjoy the same ability to deal with certain basic needs enjoyed by onpremises employees such as phone calls to babysitters and physicians as well as coffee and lunch breaks." Jumpp, supra, at 484 (emphasis supplied). Petitioner was clearly in the course of his coffee break when he was injured and Jumpp would hold same to be in the course of employment. Petitioner's stop for "snacks" as part of his "coffee break" was, and is hereby deemed to be, a minor deviation from his mission on behalf of the Respondent and the injuries sustained in the course of that deviation are hereby ruled to be compensable.

 
We are obliged to affirm the determinations of a judge of compensation so long as those determinations "could reasonably have been reached on sufficient credible evidence present in the whole record, after giving due weight to [the judge's] expertise in the field and his opportunity of hearing and seeing the witnesses." De Angelo v. Alsan Masons, Inc., 122 N.J. Super. 88, 89-90 (App. Div.), aff'd, 62 N.J. 581 (1973) (citing Close v. Kordulak Bros., 44 N.J. 589, 599 (1965)). We find substantial credible evidence in the record to support Judge Kovalcik's factual findings and his determination on the issue of compensability. We therefore affirm substantially for the reasons set forth by Judge Kovalcik in his written opinion of April 4, 2007.

Affirmed.

(continued)

(continued)

6

A-4711-06T2

June 6, 2008